Newsletter Aug 5, 2010

Kagan's Faulty View of the Constitution

Dear Supporter,

Last October, as the health care debate was heating up in Washington, a reporter asked the Speaker of the House, Nancy Pelosi to identify where the Constitution gives Congress the authority to mandate health insurance for individuals. Her reply: “are you serious?” You can read the exchange below:

" In [Kagan's] view, the Commerce Clause is whatever Congress and the Courts think it is, not what the Founders very plainly said they intended."

CNSNews.com: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”

Pelosi: “Are you serious? Are you serious?”

CNSNews.com: “Yes, yes I am.”

Her press spokesman later told the reporter that it was not a "serious question." “You can put this on the record - that is not a serious question. That is not a serious question.”

Unfortunately, while many politicians would have responded to the question more thoughtfully, their answer would not have differed in substance. The reality is that few understand the limits our Founders placed on Federal authority—limits intended to preserve our freedoms and to recognize that certain rights are inalienable.

If you force supporters of the new health care mandates, and many other intrusive laws for that matter, to justify the constitutionality of their action, they generally lean on the so-called “commerce clause.” In fact, this provision has been used often to justify most new mandates and regulations over the past several decades.

These sixteen powerful words in Article I, Section 8 of our Constitution are at the center of debate. I believe they have been misconstrued beyond recognition:

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;”

If you want to know what the Founders intended when they wrote it, there is no better source than James Madison, often referred to as the “Father of the Constitution.” In a letter written in 1829 he said:

“For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.”

This week, the Senate is considering the nomination of Elena Kagan to serve a lifetime appointment on the Supreme Court. I will strongly oppose her nomination, in part, because she made clear in her answers to me that she lacks an understanding of the Constitution, the intent of its authors, and the very real limits it places on Federal authority. In her view, the Commerce Clause is whatever Congress and the Courts think it is, not what the Founders very plainly said they intended.

While it is clear that Madison and the Founding Fathers intended for the Commerce Clause to limit governmental power, it is equally clear they never intended it to be used to expand the reach of the Federal government.

Next week, I will take a look at another common abuse of the Constitution and how it is fueling the massive growth in Federal spending.